8 F1d 638

A part owner of a vessel is not entitled to her exclusive use without giving security to his co-owner. 2.PROFITS FROM USE OF VESSEL.

Where a part owner of a vessel employs her on his own account and risk, the other part owners are not entitled to a share of the profits arising from such employment.

3.

COMPULSORY SALE OF VESSEL.

Where the-equal part Owners of a vessel cannot agree concerning her use and employment, a court of admiralty has jurisdiction, upon the application of either party, to compel a sale of the same and divide the proceeds between the owners j but, where the disagreement arises between unequal- owners, the jurisdiction is, though without good reason, doubted and dellIed.

In Admiralty.

C. J. McDougall, for libellant. Addison C. Gibbs, .for defendant.

DEADY, D. J. The libellant J. F. Coyne brings this suit for himself and his ward, George T. Coyne, to procure a sale of the steamboat Gazelle, and a division of the proceeds between himself and his equal part owner, Hezekiah Caples. The testimony concerning the circumstances or agreement under which Caples came into possession of the vessel is conflicting, but the facts appear to be as follows:
In December, 1880, and for some time previous, the stern-wheel steam-boat, of 150 tons burden, called the Gazelle, was licensed and enrolled at this port and ()wned by J. F. Coyne, George T. Coyne. and Orner J. Bryant-the latter having one-half, J. F. Coyne one-sixth, and George T. Coyne one-third interest, when Bryant sold his interest to Caples for $1,500.· The employment of the vessel had not been profitable, and the boat then owed J. F. Coyne $509.60 on account of money expended by him in payment of her expenses beyond his share, and was in debt to Harvey Higley, the engineer, the sum of $250 for wages. On December 23<1 Caples paid Coyne for said Bryant said sum of $509.60, and agreed to pay Higley said $250 within a year-the latter agreeing to release his claim against Coyne, or his interest in the boat therefor j and said Caples and Coyne, in consideration of the pre'mises, and that the former would give security to pay said Higl ey's demand, and keep the boat in good order and free from debt, ,tgree(l that said Caples might take said boat into his possession, and manage and employ her where and as he pleased. In pursuance oj this agreement, and with the consent of Coyne, Caples had the machinery of the vessel repaired at a cost of not exceeding 5500, and then, without giving any bond to the former, took her down the Columbia river, and had her enrolled at the port of Astoria, with himself as managing owner, where she has SillCd

COYNE V. CAPLES.

639

been employed, principally in carrying lumber and railway ties. The employ. of the vessel by Caples appears to have been profitable, and she has been kept in good condition, but not free from debt. The claims now existing agafnst her, and incurred since she came into his possession and control, amount to not less than $500 and probably more. In his libel Coyne alleges that Caples was not only to give security as aforesaid, but also to account to him for half the profits, if any; while in his answer, Caples claims that he was not botmd to account fortha profits,' or even give security for any purpose, but that he obtained and was entitled indefinitely to the exclusive possession and use' 'of the vessel, in consideration of the $509.60 paid by him to Coyne. But the evidence in my judgment does not support either of these 'allegations. And in coming to this conclusion, the conflicting evidence of the parties and their friends is controlled by the consideration that it is absurd to suppose that an equal part owner of a vessel would consent, without any corresponding consideration, that another equal owner might take her and employ her when and where and 'as long as he pleased, without giving security to safely return or account for the interest entrusted to his use and care. The payment of the $509.60 by Caples wall no consideration for such use and possession, because in making the same he was only discharging his own debt to Bryant, and Coyne was not materially benefited thereby, as Bryant's interest was good security to him therefor. Indeed, if there had ever been such an understanding between the parties, under the circumstances, Coyne might nevertheless assert his right to security, and compel Caples to comply or give up the use of the vessel. Nor is it reasonable to suppose that sucQ part owner in a vessel would agree to take her upon security to the other part owner and employ her at his own risk and expense, and share the profits, if any, with the latter. Such an arrangement is regarded as unjust, and therefore a part owner who refuses to join in or contribute to the employment of the vessel, is not entitled to a share of the profits. Willings v. Blight, 2 Pet. Ad. Dec. 288; The Marengo, 1 Low. Dec. 52; Story, Part. §§ 428, 431. Besides, it does not appear that Coyne ever demanded or sought to have an account from Caples, and in his letter to the latter of May 11th, asking him in effect to purchase his interest in the vessel, or return her to this port, because he had determined to sell and wanted "to avoid any further risk," nothing is said or suggested on the subject. There seems to be some doubt in the books as to the jurisdiction of a court of admiralty to compel a sale of It vessel on account of a

640

FEDERAL REPORTER.

disaweement between her owners as to her employment at the instance of a minority in value. No substantial reason is given for declining the jurisdiction, while every argument suggested by analogy and convenience is in of it. Story, Part. §§ 437-39; 2 Par. S. & A. 242; Ben. Ad. § 274. Bat in a case of an eqnal division of interests, the jurisdiction is generally admitted. Skrine v. The Hope, Bee, 2; Orleans v. Phmbus, 11 Pet. 183; Story, Part. § 439; 3 Kent, 153,154, note a.; The Ocean Belle, 6 Ben. 253; Davis v. Brig Seneca, 18 Am. Jurist, 486; The Marengo, 1 Sprague's Dec. 506; Fox v. The Lodemeia, Crabbe, 271; Ben. Ad. § 274. Yet, under the circumstances of this case, it does not seem equitable to order a sale at once, and thereby possibly prevent Caples from completing or having the full benefit of a profitable business in which he now appears to be engaged. The libellant, although entitled to security, has acquiesced so long in Caples using the vessel without it, that his demand for a compulsory sale at this juncture is open to the suspicion that he is asserting his right when he may think he has Caples at a disadvantage that will oompel him to buy at a high price. But it cannot be denied that Caples was in the wrong in taking the vessel away from Coyne, and enrolling her and employing her in another district, without giving the proper security, or at least offering to do so, when written to by Coyne as aforesaid, or even after the suit was brought, instead of which he insisted in his answer upon his right to retain the exclusive use and possession of the vessel without security or account, during his pleasure. · The decree of the court will be that within 10 days Hezekiah Caples enter into a stipulation with sureties, to be approved by the clerk of this court, in double the value of J. F. and George T. Coyne's interest in said steamboat Gazelle, to-wit, the sum of $3,000, for the return thereof to this port, and to the possession of the libellant, on or before January 1, 1882, in as good condition as he received her after the repairs upon her machinery, necessary deterioration excepted; and unless he does so, that execution may issue against his property for the amount of said value as upon a decree of this court. And in default of said stipulation, that said vessel be sold as upon exer.ution, and the proceeds brought into this court for distribution; and that npon the return of said vessel to this port, as aforesaid, she may be sold, and the proceeds disposed of as aforesaid upon the application of either party herein; and that the libellant recover his costs and expenses, to be taxed.

CAVENDER

V.

CAVENDER.

1341

CAVENDER 'V. CAVENDER.

(Oircuit Oourt, E. D. Mi88ouri; September 23, ISS!.)
1.

2.

PLEADUlG-GENERAL REPLIOATION.

The purpose of a general replication is to put in issue the new matter set forth in the answer.
SAME-EFFECT OF GENERAL DENIAL All TO ADMISSIONll IN ANSWER.

A complainant does not deprive himself of the benefit 'of admissions in the respondent's answer by a general denial of the allegations thereof.
3.

SAME-15AME-EvmENcE.

Where a devise is alleged in the bill and admitted in the answer, it is not necessary, though proper, for the complainant to produce the wIll in evidence.
4. TRUSTS-DuTY OF TRUSTEE-lNVE!I',l'MENT OF FuND-NEGLECT OF DUTy-INBOLVENCy-REMOVAL-ApPOINTMENT OF NEW TRUSTEE-HIs DUTms.

died, leaving a will, in which he named B. as his executor, and by which he devised one·half of his property, after the payment of his debts, to 13., in trust for C., during his natural life, to be invcste? in real personal secu· rity, and the income therefrom to be paid to C. semi-annually. B. qualified as executor, and subsequently. as executor, turned over the portion of the estate devised as aforesaid to himself as trustee, and as trustee receipted tc himself as executor therefor, was discharged as executor, and gave bond a! trustee, but failed for more than two years to invest money receipted for by him as trustee, or to pay C. his share of the income from real estate left by A., and became insolvent. C. brought suit· to have B. removed and a new trustee. appoin ted, and fOl damages suffered by him from B.'s neglect of duty, and it was held: (1) That it was B.'s duty to have invested the fund that came into his hands as trustee, within a reasonable time after he qualified as such, at the current rate of inter. est, and to have paid the income therefrom, and one-half the income derived from said real estate, to C. semi-annually. (2) That B. should be removed from his trust and a new trustee appointed, whose duty it would be-First, to collect from B. and his sureties said principal sum received by B., and interest thereon from the time B. qualified as trustee; second, to collect from B. and his sureties one-half the income, if any, received by him from said real estate, and to pay the same, together with interest recovered, to C.; third, to invest said principal sum, and pay t'he income therefrom to C., as provided by said will; and, fourth, to collect, in the future, C.'8 share of the income from said real estat:) and pay it over to him.

In Equity. T. A.. If H. M. Post, for complainant. John R. Shepley, Lucien Eaton, and J.,S. Garland, for defenda,nts. MCCRARY, C. J. We have considered this case upon the evidence and argument of counsel, and our conclusions are as follows: 1. The pleadings sufficiently show that John Cavender bequeathed one·half of his estate, after the payment of his debts, to respondent in trust for complainant during his natural life, to be invested in real or personal securities, and the income to be paid to the complainant v.8/no.9-41